OPM Disability Retirement - FMLA and/or Sick Leave or Tough it Out?

August 20, 2014
By
The Law Offices of Eric L. Pines, PLLC

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This is a very interesting and relevant topic and probably one of our main
specialities in assisting our clients. Virtually all of our OPM Disability
Retirement cases have some period of time when the employee is struggling
with whether or not they can go back to work or just stay on leave until
they reach OPM Disability Retirement (unless the employee is incapacitated).

This is a very difficult predicament. Often our client is struggling with
the idea of whether they can afford to stop working because they need
the money to live vs. the fact that they cannot physically or emotionally
continue to work. There are a number of interesting factors that play
into this decision.

Factor 1 is the Bruner Presumption – this presumption is based on
a legal case against OPM that led to a legal presumption that an employee
who is removed for medical inability to perform is entitled to a presumption
that they are disabled. Here we need to ask the question of whether or
not your agency will remove you on this basis….

Factor 2 is Practical Reality — can you truly afford to be not receiving
an income while awaiting OPM Disability determination. What goes into
this equation is whether or not the employee is confident they will get
OPM Disability and the fact that ultimately should they be granted disability
the employee will receive full back pay from the last day they work.

Ultimately, this is a balancing act that the employee must consider and
evaluate in working through the OPM Disability Application maze. Stay
tuned for more details on these issues in further blogs…

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